Berlin Regional Court uses a new tool against Clankriminalität

On 7 April 2020, the Berlin Regional Court ordered the confiscation of two properties in Berlin Neukölln, using a new legal instrument. Section 76a of the German Criminal Code allows the confiscation of assets previously seized as a result of certain crimes – even if the proceedings had to be suspended. Mafianeindanke welcomes this ruling and calls on the judiciary to use this instrument more often and in all areas of financial crime.

The two plots pieces of land in Neukölln concerned were provisionally confiscated in 2018. According to the Regional Court, criminals financed bought these properties with unspecified crimes’ profitsproceeds from unspecified crimes.

In its decision of 7 April, the Regional Court made use of the new instrument of independent confiscation pursuant to Section 76a of the German Criminal Code, which came into force in July 2017 in connection with the law reforming the criminal asset seizure. This provision relates to assets that have been seized on suspicion of a criminal act defined in the legislation under § 76a para. 4 of the Criminal Code and, among other things, allows confiscation even if the criminal proceedings had to be suspended. In this case the defendants were accused of money laundering, but a specific offence could not be proven with the necessary certainty.

Mafianeindanke welcomes this ruling. The fight against organised crime, money laundering and other financial crimes can only be successful if funds and assets are confiscated from the criminals. In this way, the judiciary prevents the perpetrators from investing in further crimes, expanding their economic power or keeping the illegally obtained profits safe from the investigating authorities.

However, Mafianeindanke criticizes that this is an isolated case. An effective fight against organized crime requires that the new instrument in the area of white-collar crimemust be used in all federal states for the area of white-collar crime. This requires well-equipped organisational units at the public prosecutor’s offices which only deal with asset confiscation.

In addition, Mafianeindanke is also critical of the reporting by some media, which reduce this instrument specifically to clan crimeClans of Arab origin. What is important, on the other hand, is to finally use the confiscation of illegally obtained assets in every area of financial crime. Especially against white-collar crime. Since the new norm has been in place, major German law firms, whose clients include white-collar criminals in pinstriped suits, have attacked independent confiscation in specialist forums and publications and called it unconstitutional. This interest-based debate also influences the work of those who apply the law in the judiciary. Lawyers allege a violation of the right to property under Article 14 of the German Constitution. However, it is not commercial law firms and their clients who decide on the unconstitutionality of a norm, but the Federal Constitutional Court, which has so far had no reason to make such a decision. Assets which, according to judicial conviction, can only come from illegal sources are of course not protected by the Basic Law.

Information for the press


Sandro Mattioli, First Chairman

+49-157 31 79 78 21

Mafianeindanke is a registered non-profit association in which volunteer activists work against the penetration of organized crime into our economy and society, thus working for an open, democratic society with fair opportunities for all.

mafianeindanke in the European Parliament

It was almost 12 years ago, when the first mafianeindanke activists in Berlin laid the foundations of our association. The situation back then was very complicated. There had been 6 mafia-members shot in front of a pizzeria in the city of Duisburg. And in Berlin, shortly after, more than 50 restaurant owners got a letter asking for protection money and some got their cars and restaurants set afire in the city. There was a lot to be worried about.
We stood united and, cooperating with the police, we managed to get the criminals arrested.
We were dreaming of waking up Germany.
Today, after 12 years, there are evidence showing that we didn’t make that dream come true (yet). Germany, in fact, scores an unbelievable 7th position in the world Financial Secrecy Index and it is a paradise for money launderers and their dirty capitals.
But our steady commitment brought also encouraging results. Our work was also facilitated by the inputs coming from the EU. For example, 5 years ago, thanks to an international European-funded research project, we organised a conference in Berlin for the promotion of confiscation measures in Europe
(maybe you, dear mister Tinè, might remember it).
Two years ago the new confiscation law – fostered by the EU-Directive – was presented by the German interior minister at another conference we organised – and last year we proudly witnessed a public prosecutor in Berlin fighting for the confiscation of criminal assets – seizing 77 properties and strongly promoting the new law. And she was our guest 5 years ago. You see, working together is key for success.
But what else does civil society need to be more effective in this fight?
Money, of course ?
We need to better know and study the phenomena of organised crime and mafias because we observe a dramatic lack of knowledge and awareness at all levels. In order to improve the production and dissemination of information, we would like to implement a European network of observatories, with the task of monitoring and studying the local and international criminal dynamics. These observatories would the place to develop and exchange new best practices. Criminal phenomena are in continuous transformation, adapting themselves to the evolving societies. Therefore, also the contrasting tools and methods have to be adjusted and new ones have to be conceived. For example, we are currently conducting in Berlin a feasibility analysis for supporting people in the dissociation from their criminal background.
In order to improve the effectiveness, we also need – as underlined by my CHANCE fellows – the harmonisation of the national laws in many areas.
We would like to point out for example the problems related to the lack of international coordination in the protection of witnesses and whistle blowers with a simple story:
in Germany lives an Italian woman, who through family relations got involved in the international traffics of an Italian-mafia network. When she realised that this business would put in danger herself and her kids, she decided to become a witness and spoke with the German police. Her declarations became key accusations in an Italian investigation, which led to one of the main recent operations against Italian mafia in Europe and to the arrest of dozens relevant members of mafia families. Despite this, she was not accepted in the German protection program. From a German point of view, the disclosed information was not sufficiently relevant – as there is no law punishing the belonging to a mafia group in Germany. This illustrative case shows how important is the European homogenisation of the protection programs for witnesses. It would also be essential to create mechanisms for the acquisition and exchange of information coming from witnesses, whistle blowers and informants, who often have a key role in unveiling organised crime and mafia structures.
In conclusion, I must say that I am very proud and thankful for the path we have built together with the CHANCE network. We believe that the variety of problems and the different contributions today highlighted that organised crime and mafias are phenomena affecting society as a whole.
We believe that the engagement of civil society has to play a key role.
It is a European problem, we need a European action and reaction.
I am sure that next time we will meet here we will be more – more people, more organisations, from all over Europe – with more tools and new methods.
Thank you very much.

EU Directive on the freezing and confiscation – help in the fight against organized crime groups?

Fighting the organized crime is a complex process that encompasses not only hunting down and breaking crime rings, but also making sure that any profit they have made is eventually seized.  The law has to unable criminals to freely dispose assets acquired in an illegal way. Yet according to a general rule all accused are „innocent until proven guilty”. Although in many European countries aforementioned rule does not apply in certain cases (especially in the criminal law where the burden of proof is shifted onto the defendant), the European Union decided to officially align its Member States’ regulations on that subject. Works on a directive started in 2012 and the final version was presented in 2014 – „Directive 2014/42/EU of the European Parliament and of the Council of 3 April 2014 on the freezing and confiscation of instrumentalities and proceeds of crime in the European Union”. This document fits perfectly into European Union’s priorities for the fight against serious and organized crime between 2014 and 2017.